Lapo v. Naillieux

• Decision Date: 08 July 1933
• Docket Number: 31,240
• Citation: 138 Kan. 99,23 P. 500
• Parties: ED LAPO, Appellee, v. VERN NAILLIEUX, Appellant
• Court: Kansas Supreme Court

23 P. 500

138 Kan. 99

ED LAPO, Appellee, v. VERN NAILLIEUX, Appellant

No. 31,240

Supreme Court of Kansas

July 8, 1933

July 1933, Decided

Appeal from Cloud district court; TOM KENNETT, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT

APPEAL AND ERROR--Review of Order Granting New Trial--Manifest Error of Law in Granting. In an action for damages arising from injuries sustained by plaintiff when struck by defendant's automobile at a street crossing, the record examined, and held: (a) The trial court's ruling that the special findings were not without support in the evidence is binding, since no appeal was taken therefrom; (b) no inconsistency existed between the special findings; (c) the special findings covered the material issues and clearly established the defense of plaintiff's contributory negligence; and (d) held, that defendant was entitled to judgment, and that the granting of a new trial under the circumstances was a mere inadvertence which should be ignored and final judgment ordered as directed by the civil code, § 581, R. S. 60-3317.

Clyde L. Short, of Concordia, for the appellant.

Charles L. Hunt, Frank C. Baldwin and Charles A. Walsh, Jr., all of Concordia, for the appellee.

Dawson J. Harvey, J., Dawson, J., dissenting.

OPINION

DAWSON, J.:

This was an action for damages for injuries sustained by plaintiff when struck by defendant's automobile at a street crossing in Concordia.

The locus in quo was near the center of the west side of the intersection of Broadway, which runs north and south, and Sixth street, which runs east and west. In the middle of Sixth street and in line with the sidewalk on the west side of Broadway is a safety zone over which motorists are forbidden to drive, under penalty of a city ordinance. This ordinance also requires careful driving and moderate speed at street crossings.

On November 4, 1930, plaintiff was walking south across Sixth street on the west side of Broadway, and just as he was within a step of the safety zone, defendant came from the east driving his automobile negligently and at high speed and struck the plaintiff, tossing him into the air and causing him to fall to the pavement, whereby he sustained various injuries.

The defense was a general denial and a plea of contributory negligence.

Jury trial; verdict for plaintiff in the sum of $ 400; and special findings of the jury as follows:

"1. What, if anything, was there to prevent plaintiff from seeing defendant's car approaching? A. Nothing.

"2. After defendant saw plaintiff in the street and in a dangerous position, did he use his best judgment and efforts in trying to avoid the accident? A. Yes.

"3. Did plaintiff, after starting south in his effort to cross Sixth street, look east to see if vehicles or automobiles were coming from that direction? A. No.

"4. Was the plaintiff guilty of negligence which proximately contributed to his injury? A. Yes.

"5. If you find the defendant was negligent and that such negligence caused the injury complained of, state what particular act or acts, omission or omissions on the part of the defendant caused the injury. A. Defendant was negligent by his failure to see plaintiff or sound warning in time to avoid striking plaintiff.

"6. Would any injury have occurred if plaintiff had exercised ordinary or reasonable care in protecting himself? A. No.

"7. If defendant had operated his car at the legal rate of speed, could he have stopped it in time to prevent the injury? A. Yes."

Defendant filed a motion to set aside the general verdict and for judgment on the special findings, and also a motion for a new trial. The first motion was denied, and the second motion was allowed on the specific ground "that the findings are inconsistent with each other and with the general verdict and not because the findings are not sufficiently supported by the evidence."

Defendant appeals, assigning error on the overruling of his motion for judgment on the special findings. Plaintiff challenges his right to have this question reviewed because defendant's motion for a new trial was sustained, in consequence of which he now has nothing about which to complain.

It appears to us that this technical point raised by plaintiff must be considered in the light of the peculiar disposition which the trial court made of defendant's motion for judgment on the special findings. It is perfectly apparent that these special findings convicted the plaintiff of contributory negligence. It is also perfectly clear that the special findings were consistent with each other. Moreover the trial court expressly ruled that the special findings were not without...